DOL OFLC, https://foreignlaborcert.doleta.gov/pdf/H-2A_Webinar_August_2018.pdf

U.S. DEPARTMENT OF LABOR

Employment & Training Administration H-2A Temporary Labor Certification Program August 2018 Office of Foreign Labor Certification Employment and Training Administration United States Department of Labor For Government Training Use Only (August 2018) 1 Disclaimer This presentation is intended for training use only and does not carry the force of legal opinion. The Department of Labor is providing this information as a public service. This information and any related materials are presented to give the public access to information on the Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages.

Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention. For Government Training Use Only (August 2018) 2 H-2A Temporary Labor Certification Program Topics H-2A Workload / Filing Trends of Fiscal Year (FY) 2018 H-2A Program Requirements Filing Tips and Best Practices For Government Training Use Only (August 2018) 3 H-2A Temporary Labor Certification Program H-2A Programs: Filing Trends of FY 2018 For Government Training Use Only (August 2018) 4 Department of Labor H-2A Workload Trends of FY 2018  Received applications: Year to date in FY 2018, the total volume of applications received increased by 18%, as compared to the total of applications received in FY 2017  Processed applications: Year to date in FY 2018, the number of workers processed has increased by 24% from FY 2017  Prevalent worksite locations: The top 3 work States are Florida, Georgia, and Washington  H-2A Labor Certification applications (H-2A LCs): Year to date in FY 2018, the total number of applications received from H-2A LCs has already increased by 30% as compared FY 2017 For Government Training Use Only (August 2018) 5 Department of Labor H-2A Program Workload Profile, FY 2018 (through July 2018) Applications submitted for processing Applications processed Certifications Denials Withdrawn Worker positions requested Worker Positions Certified Worker Positions Denied Worker Positions Withdrawn 10,808 10,473 10, 166 128 179 217,162 210,075 3734 3353 For Government Training Use Only (August 2018) 6 Understanding the H-2A Program H-2A Program Requirements For Government Training Use Only (August 2018) 7 State Workforce Agency Role  Pre-filing procedures • Job order – No more than 75 days/no fewer than 60 days o Know State Workforce Agency (SWA) requirements o Tax ID numbers o State Farm Labor Contractor Licensing requirements o Be responsive to SWAs o General information requests o Notice of Deficiency (NOD) response o Availability for Housing Inspections For Government Training Use Only (August 2018) 8 State Workforce Agency Role  Housing – Ready for occupancy 30 days prior to the “date of need” • Employer-provided – requires SWA housing inspection • Rental or public accommodation – may require SWA inspection – check with your SWA • Refer to Round 12 FAQs published on June 16, 2017 For Government Training Use Only (August 2018) 9 State Workforce Agency Role  Recruitment assistance • Process job order and begin local recruitment • Continue local recruitment and begin interstate recruitment • Act as Order-Holding Office • Provide other SWAs with up-to-date information (e.g., Changes in crop-conditions, start dates, etc.) For Government Training Use Only (August 2018) 10 General Requirements for Employer Participation  Employer  U.S. employer (e.g., farm/ranch), association of agricultural producers, or farm labor contractor • Associations of agricultural producers can participate as sole employers, agent with one member, or joint employer with multiple members  Work  Agricultural labor or services (e.g. planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity) • Full-time (35 hours or more a week)  Employer’s need  Seasonal or temporary in nature, such as a recurring growing cycle (generally lasting 10 months or less) For Government Training Use Only (August 2018) 11 STEP 1: Obtain a Prevailing Wage and Prepare Application  Obtain minimum wage information from Office of Foreign Labor Certification (OFLC) agricultural on-line wage library  Offer, advertise, and recruit.

Pay hired workers the highest of the following: 1. Adverse Effect Wage Rate (AEWR) 2. Prevailing Hourly Wage or Piece Rate 3. Collective Bargaining Wage 4.

Federal or State Minimum Wage  Prepare a job order (Form ETA-790) and H-2A application package • Recommended Timeframe: 90 and 75 days before work start date For Government Training Use Only (August 2018) 12 Sample Wage Offers on Form ETA-790  The offer(s) must match the wages entered in Form ETA- 9142A for each crop and commodity For Government Training Use Only (August 2018) 13 STEP 2: Submit a Job Order to the SWA  Submit the job order (Form ETA-790) and inform the SWA of the intent to file a future application for H-2A workers • Job order must meet minimum regulatory content requirements (20 CFR 653 Subpart F and 20 CFR 655.122) • SWA reviews job order and notifies employer of any deficiencies within 7 days OR, if acceptable, begins recruitment of U.S. workers within the State • Request that the SWA inspect housing for farmworkers during this timeframe  Regulatory Timeframe: 75 and 60 days before work start date For Government Training Use Only (August 2018) 14 Preparing the Form ETA-790 – General Requirements  The job opportunity must: • Offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers; • Not impose on U.S. workers any restrictions or obligations that will not be imposed on H-2A workers; or • Offer job qualifications and requirements (e.g., experience) that are bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops o Certifying Officer (CO) or SWA may require employer to submit documentation substantiating the appropriateness of any qualification contained in the ETA Form 790 For Government Training Use Only (August 2018) 15 Preparing the Form ETA-790 – General Requirements  The job order must contain the minimum content requirements under 20 CFR 655.122(d) Minimum Benefits, Wages, and Working Conditions Regulatory Citation(s) Provision of Housing Provision of Workers’ Compensation Provision of Tools, Supplies, and Equipment Provision of Meals or Cooking Facilities Provision of Transportation and Daily Subsistence Three-Fourths Guarantee 655.122(d) 655.122(e) 655.122(f) 655.122(g) 655.122(h) 655.122(i) Hours/Earnings Records, Rates and Frequency of Pay 655.122(j) through (m) Abandonment or Termination for Cause Contract Impossibility Required Deductions from Worker’s Pay Work Contract or ETA Form 790 and attachments 655.122(n) 655.122(o) 655.122(p) 655.122(q) For Government Training Use Only (August 2018) 16 Step 3: File Application with OFLC  Submit the following documents: • Form ETA 9142A; • Appendix A - signed and dated copy of original; • Copy of Form ETA-790 and all attachments submitted to the SWA; Itinerary of worksites (if applicable); • • Workers compensation coverage; • SWA housing inspection report(s) or other documentation demonstrating rental/public accommodation housing meets standards and sufficient to house all workers; and • Agent agreement/documentation demonstrating authority to represent the employer and Migrant and Seasonal Agricultural Worker Protector Act registration (MSPA) (if applicable) For Government Training Use Only (August 2018) 17 Labor Contractor Filing Checklist  Additional documentation for H-2A labor contractors: • Name and location of each fixed-site employer, expected start and end dates of work, and a description of the crops and activities; • Copy of fully-executed work contracts with each fixed-site employer • Copy of MSPA FLC Certificate of Registration, where required, identifying the specific FLC activities; • Proof of ability to discharge financial obligations by submitting an original surety bond document; • Bond should be original and clearly indicate case number; and • Where the fixed-site employer will provide housing or transportation to workers, information that confirms it o Housing complies with applicable standards and has been certified by the SWA (see housing FAQ to determine if inspection required) o Transportation complies with applicable Federal, State, or local laws and regulations For Government Training Use Only (August 2018) 18 STEP 4: DOL-OFLC Processing of H-2A Application  OFLC reviews application for obvious errors or inaccuracies and compliance with program requirements • Statutory Timeframe: Within 7 days of receipt of the H-2A application •  OFLC issues a Notice of Deficiency (NOD) or Acceptance (NOA) If a NOD is issued, the employer has 5 business days to respond If the application is accepted, the employer may start positive recruitment of U.S. workers •  If applicable, the SWA is required to submit a housing inspection report For Government Training Use Only (August 2018) 19 STEP 4: DOL-OFLC Processing of H-2A Application Conducting Positive Recruitment for U.S. Workers  Place 2 print advertisements in local area  Contact U.S. employees from prior season/year  Conduct out-of-state recruitment (not more than 3 States) • Additional recruitment can be ordered at the discretion of the Department • Positive recruitment must occur no later than 3 days before the start date of work Regulatory Timeframe: Until H-2A workers depart or 3 days before start date, whichever occurs first For Government Training Use Only (August 2018) 20 Submission of Initial Recruitment Report (20 CFR 655.156(a  The employer must prepare, sign, date, and submit a written recruitment report on a date specified by the CO in NOA  The recruitment report must: • Identify each recruitment source by name; • Include name/contact information of each U.S. worker who applied for the job and the disposition of each worker; • Confirm that former U.S. employees were contacted and how they were contacted; and • Provide explanation of the lawful job-related reason(s) for not hiring each U.S. worker (if applicable) For Government Training Use Only (August 2018) 21 STEP 5: Issuance of Labor Certification Determination  Temporary labor certifications will be granted no later than 30 days before the start date of work as long as all program requirements are met  An employer has rights to appeal any denial determination or partial certification of its request for H-2A workers  OFLC issues the original certified Form ETA-9142A on “blue security paper” to employers  OFLC instructs employers to submit the certified Form ETA- 9142A and a signed and dated copy of the Appendix A to the appropriate USCIS Service Center Important Reminder: Employers must consider and hire U.S. workers until 50 percent of the certified period of work has elapsed For Government Training Use Only (August 2018) 22 REMINDER: Issuance of Final Determination  OFLC issues a final determination 30 days before the start date of work as long as all program requirements are met  Lacking the following documentation will result in delaying the issuance of an H-2A final determination: • Proof of valid workers’ compensation coverage; • Housing documentation for farmworkers; • Valid farm labor contractor licenses; • Valid surety bond for labor contractors; and • Recruitment report  Changes to the original application submitted (e.g., housing, number of workers, etc.), although allowed, often delay final determinations  DOL provides employers with additional time to submit required documents to obtain certification, rather than issue a denial forcing employers to choose between filing an appeal or new application For Government Training Use Only (August 2018) 23 General Filing Tips & Issues Post-Certification Recruitment Obligations Employers must continue to cooperate with the SWA in recruiting for the job opportunity and provide employment to any qualified U.S. worker who applies for the job opportunity • Until 50 percent of the certified period of work has elapsed • Exemptions must be requested and approved by OFLC/Chicago National Processing Center Employer must continue to update the initial recruitment report submitted to the CO for certification throughout the entire recruitment period Employer must sign and date the final written recruitment report and be prepared to submit it to the CO upon request or in response to an audit examination For Government Training Use Only (August 2018) 24 Important Reminders  Pay the required H-2A certification fees in full and timely manner (within 30 days after the certified is issued)  Maintain all documents supporting the certification for a period of 3 years  Report the termination or separation/abandonment of workers in a timely manner (no later than 2 working days)  If requesting change in period of employment, please ensure changes represent bona fide business need in documentation • NOTE: Claiming expected government delays is not an acceptable justification. For Government Training Use Only (August 2018) 25 Important Reminders  Agents/Attorneys - If using a template to submit applications and the CO issues a NOD impacting your template, remember to amend the template to avoid a continuation of the same NOD for each application  Change iCERT password frequently  Check H-2A Round 12 FAQs published on June 16, 2017, Housing Assurances required when using public accommodations For Government Training Use Only (August 2018) 26 Additional OFLC H-2A Resources  https://www.foreignlaborcert.doleta.gov/h-2a.cfm For Government Training Use Only (August 2018) 27